Anti-Monsanto Farmers Lose Attack on Patents

(CN) – Noting that Monsanto has agreed not to sue for inadvertent infringement of its genetically modified crops, the Federal Circuit chucked a challenge to 23 of the controversial biotechnology company’s patents. Monsanto patented its method of making a genetically modified organism resistant to the herbicide Roundup that it also sells. The resulting seeds are known as Roundup Ready. Farmers can either buy these seeds directly from Monsanto, or seed producers can insert the Roundup Ready genetic trait into their plants by licensing the technology. Monsanto meanwhile has brought 144 infringement lawsuits alleging unauthorized use of its seed between 1997 and 2010. Some growers are opposed, however, to treating their crops with glyphosate-based weed killers like Roundup and thus have no need for transgenic seeds incorporating Monsanto’s technologies. They said Monsanto could nevertheless still accuse them of patent infringement because transgenic seeds have become ubiquitous and could naturally contaminate their crops despite their best efforts. Between 85 percent and 90 percent of all soybeans, corn, cotton, sugar beets and canola grown in the United States allegedly contain Monsanto’s patented genes, forcing organic farmers to forgo growing conventional corn, cotton, canola, sugar beets, soybeans and alfalfa, they claimed. In a 2011 complaint, a coalition of farmers, seed sellers and agricultural groups wanted a federal judge to invalidate 23 of Monsanto’s patents. U.S. District Judge Naomi Buchwald in Manhattan dismissed the action, however, after finding that there was no live controversy. She noted that Monsanto has publicly averred that it would never exercise its patent rights against farmers whose crops inadvertently express trace amounts of patented seeds or traits. A three-judge panel of the Federal Circuit affirmed dismissal Monday. “In sum, Monsanto’s binding representations remove any risk of suit against the appellants as users or sellers of trace amounts (less than one percent) of modified seed,” Judge Timothy Dyk wrote for the Washington-based panel. “The appellants have alleged no concrete plans or activities to use or sell greater than trace amounts of modified seed, and accordingly fail to show any risk of suit on that basis. The appellants therefore lack an essential element of standing. The District Court correctly concluded that it lacks Declaratory Judgment Act jurisdiction.” Judges William Bryson and Kimberly Moore concurred with Dyk.